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Jaipal Khaira vs State Of Himachal Pradesh And … on 2 November, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

.

Cr.MMO No. 320 of 2018.

Date of decision: 02.11.2018.

Jaipal Khaira …..Petitioner.

Versus

State of Himachal Pradesh and another ….. Respondents.

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

Whether approved for reporting?1 No
For the Petitioner : Mr. Rajesh Kumar Parmar, Advocate.

For the Respondents : Mr. Vinod Thakur and Mr. Sudhir
Bhatnagar, Addl. A.Gs., for respondent
No.1.

Tarlok Singh Chauhan, Judge (Oral).

The petitioner, who at the relevant time was posted as Naib-

Tehsildar has sought quashing of FIR and also consequential proceedings

including charges framed by the Court below in case arising out of FIR No.

207 of 2011.

2. The facts, as are relevant for the adjudication of this petition are

that the above FIR was registered on the statement of Kajal Sharma D/o late

Sh. Vinod Kumar Sharma R/o Sekhupura P.O. Kandrori, P.S. Indaura, District

1
Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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2

Kangra, who stated that in the year 2007 she was studying in 10+1 at GSSS,

.

Indaura and was seeking tuition from Ranjeet Singh Pathania S/o Sh. Madan

Singh R/o Bari, P.S. Indaura. During the month of January 2008, Ranjeet

Singh alongwith her mother came to her home with the offer to make marriage

with Kajal. But her mother refused to accept his offer. After this, Ranjeet Singh

started residing in her home with the consent of her mother. Ranjeet Singh and

her mother used to beat and mentally torture her to get her consent to marry

with him. During the year 2008, Ranjeet Singh quarreled with her and due to

this, people of her village assembled at her home and raised objection that

why an unknown/outsider is residing at their home. On this, her mother Anita

Devi assured the villagers that she is going to solemnised the marriage of her

daughter with Ranjeet Singh. On 9.9.2008 while she was in her school,

Ranjeet Singh came there and told that her mother is out of sort. On this, she

reached at her home with Ranjeet Singh and found that her mother was sitting

with the mother of Ranjeet Singh Krishna Devi. They forced her to go Indaura

with them. When they reached at Indaura they forced her to wear the bridal

dress. After that, they took her to Tehsil Court, compelled her to sign on some

documents and thereafter they told her that she has duly got married with

Ranjeet Singh. At the time of her marriage, she was adolescent of 16 years

old. After marriage, Ranjeet Singh used to beat her up and committed sexual

intercourse with her without her consent. During the month of May, 2009,

Ranjeet Singh and her mother beaten her and left her at the house of her

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maternal grandmother at Rait. In order to get rid from her mother and

.

husband’s maltreatment she left to Chandigarh to get some training. On

30.3.2010 she came to her home and her mother alongwith Ranjeet Pathania

again beaten her up. During the month of April, 2010 she turned to

Chandigarh. Later on, she telephonically informed her mother that now she

does not want to reside with Ranjeet Singh. On this, her mother told her that

she will never abdicate Ranjeet Singh from her house, but she can live without

Kajal Sharma. On this the above case was registered.

3. During the course of investigation, it was found that the petitioner

at the relevant time was posted as Naib Tehsildar, Indaura and had

solemnised the marriage of Kajal Sharma on 09.02.2008 by attesting two

affidavits in which Kajal Sharma has been shown as major. The date of birth of

Kajal Sharma is contradicting the facts mentioned in both affidavits. The

petitioner was legally bound to verify the name, parentage, date of birth and

facts of affidavits produced before him for attestation. Thereafter criminal case

came to be registered against Ranjeet Singh in which the petitioner was

arraigned as an accused on the ground that he had attested false affidavits of

marriage of Kajal Sharma, whose date of birth mentioned as 30.3.1991,

whereas her actual date of birth is 30.3.1992 and thereafter have committed

offence punishable under Sections 471, read with Section 120-B IPC and

offence punishable under Sections 10, 11 and 20 of Prohibition of Child

Marriage Act, 2006.

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4. After completion of investigation, even though the State refused to

.

accord prosecution sanction under Section 197 Cr.P.C. yet the charges against

the petitioner stands framed by the Court below on 25.5.2018 constraining him

to file the instant petition.

5. It is vehemently argued by learned counsel for the petitioner that

since the petitioner was not in any manner responsible for preparing the

affidavits and had only attested the same in the capacity of Executive

Magistrate, therefore, he could not have necessarily been arraigned as an

accused. In addition to, he would argue that once the petitioner had been

discharging his official duties, then in absence of sanction under Section 197

Cr.P.C., the court could not have taken cognizance of the offence.

6. On the other hand, learned Additional Advocate General has

would justify the taking of cognizance by the Court below on the ground that

the petitioner is guilty of the offence and, therefore, deserves to be not only

prosecuted but punished.

I have heard learned counsel for the parties and have gone

through the material placed on record.

7. At the outset, it may be observed that the petitioner vide

notification dated 19.02.2008 was conferred with powers of Executive

Magistrate under Section 21 of the Code of Criminal Procedure, 1973 and in

addition thereto powers to attest affidavits under Indian Oath Act.

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8. Admittedly, it was the parties to the affidavit who had prepared the

.

same and thereafter presented the same before the petitioner and petitioner

in exercise of powers conferred upon him under Section 21 (supra) had

attested the same. Therefore, in this background, the charges framed against

the petitioner that he deceived or dishonestly or by committing forgery by

attesting certificates is clearly misconceived. Further charged that he used

forged affidavit of marriage as genuine and solemnised the marriage of the

parties is too far-fetched and not borne out from the record. However, more

importantly is the fact that even though the prosecution had sought sanction

under Section 197 Cr.P.C., but the same was denied expressly by the State as

is evident from order dated 5.11.2011 passed by Divisional Commissioner,

Kangra Division, which reads thus:

“No.Div.Commr/B-3(49)/06-PF
Office of the Divisional Commissioner,

Kangra Division.
Dated:, D/Shala November, 2011.

ORDER

Whereas FIR No. 207/2011 dated 18.6.2011 P.S. Indora was
registered against Shri Jai Pal Khera, formerly Naib Tehsildar, Indora
and now under suspension;

Whereas the Superintendent of Police, Kangra at Dharamshala
vide his letter No.R/SP-11-93025 dated 22.10.2011 has sought
prosecution sanction against Shri Jai Pal Khera;

Whereas after going through the FIR, Challan and evidence
appended thereto I am of the opinion that no prima-facie is made out

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6

against Shri Jai Pal Khera and Shri Jai Pal Khera has only discharged

.

his official duty by attesting an affidvit;

Now, therefore, the undersigned in exercise of powers vested
under Section 197 Cr.P.C. vide Government notification No.Rev.A(B)15-

17/86 dated 20.10.1997 read with letter of even number dated 28 th May,
1998 hereby reject the request of Superintendent of Police, Kangra for
grant of prosecution sanction against Shri Jai Pal Khera in the abvoe
said FIR.

Sd/-

Divisional Commissioner,
r Kangra Division.”

9. Section 197 Cr.P.C.reads thus:

“197. Prosecution of judges and public servants.- (1) When any
person who is or was a Judge or Magistrate or a public servant not removable
from his office save by or with the sanction of the Government is accused of

any offence alleged to have been committed by him while acting or purporting
to act in the discharge of his official duty, no Court shall take cognizance of
such offence except with the previous sanction –

(a) in the case of a person who is employed or, as the case may be,
was at the time of commission of the alleged offence employed, in connection

with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be,

was at the time of commission of the alleged offence employed, in connection
with the affairs of a State, of the State Government:

[Provided that where the alleged offence was committed by a person
referred to in clause (b) during the period while a proclamation issued under
clause (1) of Article 356 of the Constitution was in force in a State, clause (b)
will apply as if for the expression “State Government” occurring therein, the
expression “Central Government” were substituted.

Explanation. – For the removal of doubts it is hereby declared that no
sanction shall be required in case of a public servant accused of any offence
alleged to have been committed under Section 166A, section 166B, Section
354, section 354A, Section 354B, section 354C, Section 354D, section 370,

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section 375, Section 376, Section 376A, Section 376C, Section 376D or section

.

509 of the Indian Penal Code (45 of 1860).]

10. A plain reading of the aforesaid provision makes it clear that

Section 197 Cr.P.C., postulates that if an offence is alleged to have been

committed by a public servant, who cannot be removed from the office except

by or with the sanction of the Government, the Court is precluded from taking

cognizance of such offence except with the previous sanction of the competent

authority specified in this provision. Sanction, however, is necessary if the

offence alleged against public servant is committed by him while acting or

purporting to act in discharge of his official duties.

11. The entire legal position on the subject has been elaborately

considered and dealt with by the Hon’ble Supreme Court in Devinder Singh

and others vs. State of Punjab through CBI (2016) 12 SCC 87 wherein the

principles emerging from the previous decisions have been summarised as

under:

I. Protection of sanction is an assurance to an honest and sincere officer
to perform his duty honestly and to the best of his ability to further public
duty. However, authority cannot be camouflaged to commit crime.

II. Once act or omission has been found to have been committed by public
servant in discharging his duty it must be given liberal and wide
construction so far its official nature is concerned. Public servant is not
entitled to indulge in criminal activities. To that extent Section 197 CrPC
has to be construed narrowly and in a restricted manner.

III. Even in facts of a case when public servant has exceeded in his duty, if
there is reasonable connection it will not deprive him of protection under

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section 197 Cr.P.C. There cannot be a universal rule to determine

.

whether there is reasonable nexus between the act done and official

duty nor it is possible to lay down such rule.

IV. In case the assault made is intrinsically connected with or related to

performance of official duties sanction would be necessary under
Section 197 CrPC, but such relation to duty should not be pretended or
fanciful claim. The offence must be directly and reasonably connected
with official duty to require sanction. It is no part of official duty to commit

offence. In case offence was incomplete without proving, the official act,
ordinarily the provisions of Section 197 CrPC would apply.

V. In case sanction is necessary it has to be decided by competent

authority and sanction has to be issued on the basis of sound objective

assessment. The court is not to be a sanctioning authority.

VI. Ordinarily, question of sanction should be dealt with at the stage of
taking cognizance, but if the cognizance is taken erroneously and the

same comes to the notice of Court at a later stage, finding to that effect
is permissible and such a plea can be taken first time before appellate
Court. It may arise at inception itself. There is no requirement that

accused must wait till charges are framed.

VII. Question of sanction can be raised at the time of framing of charge and it
can be decided prima facie on the basis of accusation. It is open to
decide it afresh in light of evidence adduced after conclusion of trial or at

other appropriate stage.

VIII. Question of sanction may arise at any stage of proceedings. On a police
or judicial inquiry or in course of evidence during trial. Whether sanction
is necessary or not may have to be determined from stage to stage and
material brought on record depending upon facts of each case. Question
of sanction can be considered at any stage of the proceedings.
Necessity for sanction may reveal itself in the course of the progress of
the case and it would be open to accused to place material during the
course of trial for showing what his duty was. Accused has the right to
lead evidence in support of his case on merits.

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IX. In some case it may not be possible to decide the question effectively

.

and finally without giving opportunity to the defence to adduce evidence.

Question of good faith or bad faith may be decided on conclusion of
trial.”

12. Judged in light of the aforesaid exposition of law, the question

which falls for consideration is as to whether the acts attributed to the

petitioner are directly related to his official duties. The answer to the same is

obviously in the positive because the entire allegations against the petitioner is

revolved in attesting the two affidavits which had been attested by him in his

capacity as Executive Magistrate. Once that be so, then obviously, the

sanction to prosecute was pre-condition and the Court, therefore, could not

have taken the cognizance of such offence.

13. Having said so, I find merit in this petition and the same is allowed

and FIR No.207/2011 dated 18.6.2011 registered under Sections 376(1), 506,

120-B, 420, 468, 471 IPC, Sections 9, 10 and 11 of Prohibition of Child

Marriage Act and Section 18 of Hindu Marriage Act, 1955, P.S. Indora, District

Kangra with all consequential proceedings including the order of framing of

charge dated 25.5.2018 passed by learned Additional Sessions Judge-I,

Kangra at Dharamshala, Circuit Court at Nurpur in Criminal Case No.S.C.

No.14-I/VII/13/2010, qua the petitioner alone, are quashed and set-aside.

Copy dasti.

2nd November, 2018. (Tarlok Singh Chauhan),
(GR) Judge

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